Big Data and Accuracy in Statutory Interpretation

Document Type

Article

Publication Date

2021

Abstract

Scholarship is increasingly devoted to improving the “accuracy” of statutory interpretations, but accuracy is a contingent concept dependent on interpretive perspective. If, for instance, a scholar focuses on the language production of the legislature, she may seek to improve the methodology of statutory interpretation through a more sophisticated understanding of the legislative process. Thus, the scholar may argue that one can assess the reliability of the different types of legislative history by focusing on the actors and processes that produce them. Conversely, a scholar might focus on the language comprehension of some speech community, such as the one comprised of “ordinary people.” Such a scholar may argue that certain interpretive canons are valid approximations of language usage outside of the law. Data-driven approaches to statutory interpretation may reorient how arguments about accuracy are made and evaluated. This essay considers two data-driven approaches to statutory interpretation: surveys and corpus linguistics. The use of surveys is a tool of the growing “experimental jurisprudence” movement that is by definition empirically based. In turn, corpus linguistics typically involves the statistical analysis of data from a corpus, which is a machine-readable “compilation of written and transcribed spoken language used in authentic communicative contexts” (such as in newspapers, novels, books, etc.). If performed competently, corpus linguistics results meet the “scientific standards of generalizability, reliability, and validity.” Surveys and corpus linguistics thus have the potential to help judges make more empirically based decisions about statutory meaning, although neither can transform statutory interpretation into an empirical science. This essay considers data-driven approaches and claims about interpretive accuracy through an evaluation of how these interpretive sources fit within the traditional structures of statutory interpretation. The continuing adaptation of corpus linguistics and surveys as sources of meaning for legal interpretation is an exciting development. But they must be properly situated within the process and theory of interpretation in order to assess whether they can transform how the accuracy of statutory interpretations is measured. Both corpus linguistics and surveys have the potential to help judges make more empirically based decisions about statutory meaning. Even so, features of legal interpretation prevent either source from transforming legal interpretation into an empirical science. Legal knowledge and training, the full context of a statute, and interpretive inferences and judgment are all integral to statutory interpretation, and these features prevent statutory interpretation from being fully informed by empirical methods. Appeals to interpretive accuracy must therefore remain at least partly rhetorical.

Publication Title

Brooklyn Law Review

ISSN

0007-2362

Volume

86

Issue

2

First Page

357

Last Page

388

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